THE GAUHATI HIGH COURT THROUGH THE REGISTRAR GENERALversusGOTO ETE & OTHERS

                       [2018] 10 S.C.R. 261                             261


           THE GAUHATI HIGH COURT THROUGH                               A
                THE REGISTRAR GENERAL
                                 v.
                     GOTO ETE & OTHERS
                  (Civil Appeal No. 4298 of 2018)                       B
                          APRIL 23, 2018
         [A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
       Judicial Service – Arunachal Pradesh Judicial Service Rules,
2006 – Proviso to r.7 – Consideration for regularisation –
                                                                        C
Respondent Nos.1 to 3 were appointed as Additional Deputy
Commissioners with the powers of Additional Sessions Judge, on
contract basis – They were to man Fast Track Courts (FTC) –
Respondents claimed for regularisation to the said posts and to
work as Additional Sessions Judges, invoking the provisions of r.7
of the Rules – However, the Committee consisting of High Court          D
Judges rejected the claim of the respondents – Thereafter, High
Court issued advertisement on 31.07.2008 for the post of District
and Sessions Judge, in which respondent Nos.2 and 3 appeared
but could not qualify and respondent no.1 did not appear – High
Court took decision on 31.07.2012 to undertake selection process
                                                                        E
of the FTC Judges in terms of the Brij Mohan Lal (2) case – None
of the respondents were able to qualify the exam, consequently their
services were dispensed with – Writ Petition filed by the respondents
– High Court set aside the order dispensing the ad hoc services of
the respondents and directed the State to start the consultation
process for absorption of respondents – On appeal, held: The            F
Committee of High Court Judges was of the opinion that the
respondents were not entitled for appointment to the regular cadre
of the Higher Judicial Service – The said order was not challenged
by the writ petitioners/respondents – Even otherwise, such decision
of the Committee stood vindicated as two respondents who had
                                                                        G
appeared in examination vide advertisement dated 31.07.2008 failed
to qualify in the selection process and other respondent did not
appear, and further all the respondents failed to qualify another
test which was conducted pursuant to Brij Mohan Lal (2) case –
This fact pointed out incompetence of the respondents – Proviso to
                                                                        H
                                 261
262            SUPREME COURT REPORTS                     [2018] 10 S.C.R.


A     r.7 of 2006 Rules provided only to ‘consider’ the cases of the
      respondents for absorption – Cases of the respondents were
      considered, but they were not found fit for absorption in the regular
      cadre – The proviso never gave any mandate that the respondents
      had to be necessarily absorbed.
B           Allowing the appeal, the Court
             HELD: 1.1 It is stated that service records of the writ
      petitioners were examined by the Committee consisting of three
      High Court Judges and on the said examination the Committee
      was of the opinion that the writ petitioners were not entitled for
C     appointment to the regular cadre of Higher Judicial Service. No
      challenge was laid by the writ petitioners to the manner in which
      their cases were considered and rejected by the High Court or
      that such a consideration suffered from any kind of blemish. Even
      otherwise, such a decision of the Committee stands vindicated
      inasmuch as:
D
            (i) the two writ petitioners who appeared in the examination
      pursuant to an advertisement for the post of Grade-I District and
      Sessions Judge failed to qualify in the selection process and the
      third writ petitioner did not appear at all; and

E            (ii) the petitioners even failed to qualify the test which was
      conducted pursuant to Brij Mohan Lal (2) in which the writ
      petitioners had appeared. This fact is noted just to point out the
      incompetence of the writ petitioners. [Para 30] [287-G-H; 288-
      A-C]

F            1.2 The ratio of Brij Mohan Lal (2) is discussed by this
      Court in detail in the case of Mahesh Chandra Verma and there
      also the Court was of the opinion that appointment on regular
      cadre should be made only on the basis of written examination
      etc. as laid down in Brij Mohan Lal (2). [Para 31] [288-D-E]
            2.1 Even in terms of proviso to Rule 7 of Arunachal Pradesh
G
      Judicial Service Rules, 2006, the cases of the writ petitioners
      were considered, but they were not found fit for absorption in the
      regular cadre. [Para 31] [288-E-F]
           2.2 Rule 7 of the 2006 Rules, which lays down the procedure
      and method of recruitment to the post of Additional Sessions
H
 THE GAUHATI HIGH COURT THROUGH THE REGISTRAR                            263
           GENERAL v. GOTO ETE & ORS.

Judges. The case of the writ petitioners is not covered by the           A
main provision. When two posts of Grade-I District and Sessions
Judges, after their creation vide Notification dated December
17, 2007 were advertised, two of the writ petitioners appeared
but failed to qualify in the said selection process while the third
writ petitioner did not appear at all. Adverting to the proviso of
                                                                         B
Rule 7, no doubt, it was tailor-made for the writ petitioners.
However, this proviso only suggests that cases of three ad hoc
Additional Sessions Judges, who were none else but the three
writ petitioners, ‘may be considered’ for absorption in Grade-I of
the service. It is not necessary to go into the question as to
whether the word ‘may’ would mean that it was entirely within            C
the discretion of the High Court to even consider or not to
consider the cases of the writ petitioners for absorption or
whether this word has to be read as ‘shall’ thereby holding that it
was mandatory on the part of the High Court to at least consider
the cases of the writ petitioners for absorption. This is because
                                                                         D
of the reason that as matter of fact the cases of the writ petitioners
were considered by the High Court and, in fact, that appears to
be the intention behind the proviso. However, the provision
provided only to ‘consider’ the cases of the writ petitioner for
absorption. The proviso never gave any mandate that the writ
petitioners had to be necessarily absorbed. Thus, only right of          E
consideration was there. There was no automatic absorption. Had
that been the intention, the proviso would have been worded
differently. [Para 26] [284-E-H; 285-A-B]
      Brij Mohan Lal (1) v. Union of India and Others (2002)
      5 SCC 1 : [2002] 3 SCR 810; Madhumita Das and                      F
      Others v. State of Orissa and Others (2008) 6 SCC 731 :
      [2008] 9 SCR 1126; Brij Mohan Lal (2) v. Union of
      India and Others (2012) 6 SCC 502 : [2012]
      5 SCR 305; Sarguja Transport Service v. State
      Transport Appellate Tribunal, M.P., Gwalior and Others
      (1987) 1 SCC 5 : [1987] 1 SCR 200; Mahesh Chandra                  G
      Verma and Others v. State of Jharkhand and Others
      (2012) 11 SCC 656 : [2012] 9 SCR 6; Rajendra Singh
      Verma (Dead) through Lrs. and Others v. Lieutenant
      Governor (NCT of Delhi) and Others (2011) 10 SCC 1
      : [2011] 12 SCR 496; Ajit Kumar v. State of Jharkhand              H
264            SUPREME COURT REPORTS                       [2018] 10 S.C.R.


A           and Others (2011) 11 SCC 458 : [2011] 3 SCR 830;
            Chandramouleshwar Prasad v. Patna High Court and
            Others (1969) 3 SCC 56 : [1970] 2 SCR 666; High
            Court of Punjab and Haryana and Others v. State of
            Haryana and Others (1975) 1 SCC 843 : [1975] 3 SCR
            365 – referred to.
B
                             Case Law Reference
      [2002] 3 SCR 810                referred to              Para 9
      [2008] 9 SCR 1126               referred to              Para 9

C     [2012] 5 SCR 305                referred to              Para 9
      [1987] 1 SCR 200                referred to              Para 22
      [2012] 9 SCR 6                  referred to              Para 22
      [2011] 12 SCR 496               referred to              Para 27
D     [2011] 3 SCR 830                referred to              Para 27
      [1970] 2 SCR 666                referred to              Para 28
      [1975] 3 SCR 365                referred to              Para 28
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4298
E     of 2018
            From the Judgment and Order dated 19.01.2016 of the High Court
      of Gauhati in Writ Petition No. 776 of 2013.
             Vijay Hansaria, Sr. Adv., Ms. Sneha Kalita, Avnish Pandey, Advs.
      for the Appellant.
F
            Vikas Singh, Sr. Adv., Ms. Nanda Devi Deka, Ms. Priyanka Das,
      Ms. Deepika Kalia, Devesh Kumar Tripathi, Anil Shrivastav, Rituraj
      Biswas, Ms. Purnima Jauhari, Ms. Seema P., Prakash Kumar Singh,
      Advs. for the Respondents.
            The Judgment of the Court was delivered by
G
            A. K. SIKRI, J. 1. Leave granted.
            2. Pursuant to the advertisement dated July 13, 2001 issued by
      the Government of Arunachal Pradesh, respondent Nos. 1 to 3
      (hereinafter referred to as the ‘writ petitioners’) were appointed as
H     Additional Deputy Commissioners with the powers of Additional Sessions
  THE GAUHATI HIGH COURT THROUGH THE REGISTRAR                                  265
      GENERAL v. GOTO ETE & ORS. [A. K. SIKRI, J.]

Judge, on contract basis, with the stipulation that their period of contract    A
is up to March 31, 2005. They were to man the Fast Track Courts (for
short, ‘FTCs’). This contract period was extended for a further period
of five years, i.e. up to March 31, 2010. These respondents put their
claims for regularisation to the said posts and to be allowed to work as
Additional Sessions Judges, invoking the provisions of Rule 7 of the
                                                                                B
Arunachal Pradesh Judicial Service Rules, 2006. There has been a
protracted litigation in this behalf, as would be noticed hereinafter at the
relevant stage. At this juncture, while narrating the background in which
the matter has landed in this Court, we may only mention that request
for appointment on regular basis was rejected by the High Court (the
appellant herein) and services of respondent Nos. 1 to 3 were dispensed         C
with on January 07, 2013. This termination was challenged by the writ
petitioners by filing Writ Petition (Civil) No. 776 of 2013. The proceedings
of this writ petition have culminated in the judgment dated January 19,
2016 passed by the Division Bench of the High Court. Vide this judgment
the writ petition has been allowed, thereby quashing the order of
                                                                                D
dispensing the ad hoc services of the writ petitioners with further
direction that the State/respondent No.4 (hereinafter referred to as the
‘State Government’) should start consultation process for absorption of
the writ petitioners in Grade-I of the Arunachal Pradesh Judicial Service
with effect from January 07, 2013 and directed the appellant, i.e. the
Gauhati High Court (hereinafter referred to as the ‘High Court’) to             E
consider the cases of the writ petitioners for absorption in the light of the
observations made in the said judgment. The High Court feels aggrieved
by these directions and that is the reason for challenging the judgment
dated January 19, 2016. Notice in this Special Leave Petition was issued
on August 08, 2016 and simultaneously this Court had granted the stay
                                                                                F
of the impugned judgment. The result is that the writ petitioners have
not been taken back into service.
          With this background, we now state the factual matrix in some
detail.
       3. An advertisement was issued on July 13, 2001 by the                   G
Government of Arunachal Pradesh inviting applications for filling up of
three posts of Additional Deputy Commissioners with the powers of
Additional Sessions Judge, on contract basis, for the period up to March
31, 2005. Pursuant thereto, on June 04, 2002, the writ petitioners were
selected for the aforesaid posts by the High Court. The State Government
                                                                                H
266             SUPREME COURT REPORTS                            [2018] 10 S.C.R.


A     issued appointment orders in their favour for the aforesaid post, on contract
      basis, up to March 31, 2005. This term was subsequently extended for
      another five years, i.e. up to March 31, 2010. The purpose was to post
      the incumbents in Fast Track Courts.
             4. It is relevant to point out that at that time there was no segregation
B     of executive branch from the judicial wing in the State of Arunachal
      Pradesh. This was, however, accomplished by promulgating the
      Arunachal Pradesh Judicial Service Rules, 2006 (hereinafter referred to
      as the ‘2006 Rules’), which were notified on December 06, 2006. Rule
      7 of the 2006 Rules relate to the method of recruitment and the relevant
      portion thereof is couched in the following manner:
C
             “7. Method of recruitment, qualification, reservation and
             age limit.
             In respect of each category of posts specified in Column (2) of
             the Table below, the method of recruitment and minimum
D            qualification, age limit etc. are specified in the corresponding entries
             in column (3) and (4) thereof.
             Provided that the 3 (three) adhoc Additional Sessions Judges who
             were selected and appointed by the Government, in consultation
             with the Gauhati High Court, in the year 2002 as Presiding Officers
E            of the 3(three) Fast Track Courts on contract basis under the
             specific scheme of the Central Government and have since been
             rendering services under the control and supervision of the Gauhati
             High Court, may be considered for absorption in the Grade-I of
             the Service.

F                       xx                   xx                xx”
            5. On December 13, 2007, a representation was made by
      respondent Nos. 1 and 2, inter alia, for being absorbed in the regular
      service in terms of Rule 7 of the 2006 Rules. While this representation
      was pending, the State Government issued the Notification dated
      December 17, 2007 establishing two Courts of the District and Sessions
G
      Judges. Thereafter, on February 25, 2008, the State Government made
      a proposal to the High Court, under proviso to Rule 7, for consideration
      of absorption of the writ petitioners as FTC judges against the two newly
      created posts of District & Sessions Judge, Grade-I. On March 28,
      2008, the Registrar General of the High Court put up a note to the
H
  THE GAUHATI HIGH COURT THROUGH THE REGISTRAR                                 267
      GENERAL v. GOTO ETE & ORS. [A. K. SIKRI, J.]

Committee comprising three High Court Judges for consideration of the          A
proposal of the State Government. The Committee, after consideration
of the entire material, rejected the proposal for absorption on May 09,
2008. Respondent No.1 made another representation dated June 12,
2008 for reconsideration of his absorption in the regular service, as a
special case, in terms of Rule 7 of the 2006 Rules. This representation
                                                                               B
also came to be rejected by the Committee on June 25, 2008 by reiterating
its earlier resolution dated May 09, 2008.
       6. Thereafter, on July 31, 2008, the High Court issued another
advertisement for filling up of two posts of District and Sessions Judge,
Grade-I, that were created vide Notification dated December 17, 2007.
Respondent Nos. 2 and 3 appeared in the examination but could not              C
qualify in the selection process. Respondent No.1, though applied, did
not appear in the examination. Instead, vide Notification dated March
30, 2010, two other candidates were selected and appointed to the notified
posts.
       7. Respondent No.1 approached this Court by filing Writ Petition        D
(Civil) No. 401 of 2008 under Article 32 of the Constitution of India,
seeking absorption in terms of the proviso to Rule 7 of the 2006 Rules.
On September 15, 2008, this Court issued notice in the said writ petition.
After completion of pleadings, the matter was directed to be listed for
final hearing. At that stage, on March 24, 2011, the Registrar General of      E
the High Court filed an additional affidavit, inter alia, stating that the
cases for absorption of respondent Nos. 1 and 2 were considered twice
(on May 09, 2008 and June 25, 2008 respectively) under the aforesaid
proviso to Rule 7, and a decision was taken not to absorb them. Despite
this, the State Government has, on April 07, 2011, recommended the
names of the writ petitioners for appointment to the High Court. Be that       F
as it may, on May 09, 2011, this Court dismissed the Writ Petition (Civil)
No. 401 of 2008, as withdrawn. No liberty was sought for and/or granted
to agitate the same issue by filing a fresh writ petition in the High Court.
       8. When the things rested at that, the State Government approved
extension of term of the FTC judges in the State for a period of five          G
years with effect from April 01, 2011 to March 31, 2015, vide orders
dated May 19, 2011. Few months thereafter, i.e. on November 03, 2011,
the Governor of the State of Arunachal Pradesh, in consultation with the
High Court, converted the three FTCs into Regular Courts of Additional
District and Sessions Judges, Grade-I.                                         H
268             SUPREME COURT REPORTS                            [2018] 10 S.C.R.


A             9. The Union of India had framed a policy, which was termed as
      the FTC Scheme. The purpose of this FTC Scheme primarily was to
      reduce the pendency of criminal cases pending in the respective courts.
      The anticipated benefits of the FTC Scheme, as projected, were – speedy
      trial, elimination of pendency in the District Courts, enormous saving of
      expenses incurred on under trials, etc. Though the FTC Scheme was
B
      contemplated to be for a definite period of five years, it came to be
      extended and remained in force under the judgment of this Court in Brij
      Mohan Lal (1) v. Union of India and Others1 and directions passed in
      Madhumita Das and Others v. State of Orissa and Others2. Many
      judicial officers were appointed to do the work of FTCs for speedy
C     disposal of certain kinds of matters, including CBI matters, and this was
      done on the directions given by this Court in Brij Mohan Lal (1). On
      the recommendations made by the Chief Justices and the Chief Ministers
      Conference, the Cabinet Committee on Economic Affairs, vide its decision
      dated April 07, 2005, extended the FTC Scheme for a period of another
      five years with 100% Central funding. Again, the FTC Scheme was
D
      extended by the decision of the Central Government till March 31, 2011
      but thereafter the Union of India had taken a conscious decision not to
      extend the financing of the FTC Scheme beyond March 31, 2011. Despite
      discontinuation of the FTC Scheme by the Union of India, some of States
      decided to continue with the said Scheme. Be that as it may, on
E     abandoning the FTC Scheme by the Union and other States, the judicial
      officers who were appointed under the FTC Scheme felt aggrieved and
      it resulted in filing of various petitions in this Court seeking regularisation
      of their services and absorption against the vacancies appearing in the
      regular cadre. The controversy was ultimately set to rest by this Court
      vide judgment dated April 18, 2012 rendered in Brij Mohan Lal (2) v.
F
      Union of India and Others3.
             10. This Court in Brij Mohan Lal (2), inter alia, directed that all
      direct recruits to FTCs, who opt for regularisation, shall take written
      examination to be conducted by the High Courts, followed by interview,
      and those who are successful in the said selection process would be
G     entitled for appointment to the regular cadre of higher judicial service.
      As the decision rendered in this case has some bearing on the issue that

      1
        (2002) 5 SCC 1
      2
        (2008) 6 SCC 731
      3
        (2012) 6 SCC 502
H
 THE GAUHATI HIGH COURT THROUGH THE REGISTRAR                                   269
     GENERAL v. GOTO ETE & ORS. [A. K. SIKRI, J.]

confronts this Court in the instant appeal, we reproduce some relevant          A
portions of the said judgment hereunder:
      “160. These petitioners have also raised a challenge to Rules 4
      and 6 of the Gujarat Rules under which they were appointed, on
      the ground that the same are arbitrary and discriminatory. Firstly,
      the Rules under which the petitioners were appointed after 2001           B
      themselves were to be in force only till 31-12-2005. Till 2005,
      none of the appointees challenged these Rules. For these four
      years, they in fact took full advantage of their appointment under
      these Rules and received different service benefits thereunder.
      We are unable to appreciate the contention that these Rules were
      arbitrary or discriminatory.                                              C

      161. The Rules themselves were temporary and were enacted
      to meet an emergency situation. The appointments were made
      purely on ad hoc and urgent temporary basis for a period of two
      years, terminable without any prior notice. A temporary
      appointment, which itself was made for a period of two years,             D
      can hardly be equated to a tenure appointment and must be
      construed on such terms. These appointments were to come to
      an end by lapse of time. Such an appointment obviously cannot
      vest or confer any right upon the appointees to be absorbed in the
      permanent cadre, as they were not appointed in accordance with            E
      the provisions of the Gujarat Judicial Service Recruitment Rules,
      1961.
      162. The expression “liable to be terminated at any time without
      any notice” could be susceptible to objections if it was used in the
      case of a quasi-permanent or permanent employee of a                      F
      government servant (sic). However, we have already noticed that
      there were no permanent posts contemplated under the FTC
      Scheme. The entire FTC Scheme was ad hoc and formulated to
      operate only until the year 2005. It was continued beyond that
      period in accordance with the directions of this Court but now a
      decision has been taken not to continue the FTC Scheme beyond             G
      31-3-2011.
      163. Even if for the sake of argument, we accept the contention
      that the expression “liable to be terminated at any time without
      any notice” is arbitrary and opposed to the basic rule of law, it still
                                                                                H
270      SUPREME COURT REPORTS                           [2018] 10 S.C.R.


A     has to satisfy the twin tests laid down in Parshotam Lal Dhingra
      i.e. firstly, whether the government servant being terminated or
      reduced in rank thereby had a right to the post or to the rank, as
      the case may be and, secondly, whether he had been visited with
      evil consequences. Both of these tests have to be answered in
      the negative, in the facts and circumstances of the present case.
B
      164. We have already held above that these officers had no right
      to their posts and consequently, discontinuation of their services
      in the facts of the present case cannot be construed as punitive or
      one visiting the petitioners with civil consequences. This holds
      true even though in some cases, it has been recorded that the
C     performance of these appointees was found to be unsatisfactory
      but that is not the lone reason given by the High Court for dispensing
      with their services. It is the discontinuation of the FTC Scheme
      itself that is the principal reason for terminating the services of all
      these officers.
D               xx                     xx                     xx
      176. We have already noticed that the FTC Judges were appointed
      under a separate set of Rules than the Rules governing the regular
      appointment to the State Higher Judicial Services. It has been
      clearly stipulated that such appointments would be ad hoc and
E     temporary and that the appointees shall not derive any benefit
      from such appointments.
      177. In the case of State of Rajasthan, it is the judicial officers
      from the cadre of Civil Judge, Senior Division, who were promoted
      as FTC Judges. They have continued to hold those posts for a
F     considerable period. According to these petitioners, they were
      promoted to the Higher Judicial Services as per the Rules and,
      therefore, keeping in view the order of this Court in Madhumita
      Das as well as the very essence of the FTC Scheme, they should
      be absorbed as members of the regular cadre of Higher Judicial
G     Services of the State of Rajasthan. The State Government had
      issued a directive that they should undertake the limited competitive
      examination for their regular promotion/absorption in the higher
      cadre. These officers questioned the correctness of this directive
      on the ground that they were promoted as Additional Sessions
      Judges (FTC) under the Rules and, therefore, there was no
H
THE GAUHATI HIGH COURT THROUGH THE REGISTRAR                              271
    GENERAL v. GOTO ETE & ORS. [A. K. SIKRI, J.]

   question of any further requirement for them to take any written       A
   examination after the long years of service that they have already
   put in in the Higher Judicial Services.
   178. The Rajasthan Judicial Service Rules, 2010 are in force for
   appointment to the Higher Judicial Services of the State. The
   judgment of this Court in All India Judges’ Assn. (3) case as          B
   well as the relevant Rules contemplate that a person who is to be
   directly appointed to the Higher Judicial Services has to undergo
   a written examination and appear in an interview before he can
   be appointed to the said cadre. As far as appointment by promotion
   is concerned, the promotion can be made by two different modes
   i.e. on the basis of seniority-cum-merit or through out-of-turn        C
   promotion wherein any Civil Judge, Senior Division who has put
   in five years of service is required to take a competitive
   examination and then to the extent of 25% of the vacancies
   available, such Judges would be promoted to the Higher Judicial
   Services.                                                              D
   179. It was admitted before us by the learned counsel appearing
   for the petitioners that these officers who were promoted as ad
   hoc FTC Judges had not taken any written competitive examination
   before their promotion to this post under the Higher Judicial
   Services. In other words, they were promoted on ad hoc basis           E
   depending on the availability of vacancy in FTCs. Once the Rules
   required a particular procedure to be adopted for promotion to the
   regular posts of the Higher Judicial Services, then the competent
   authority can effect the promotion only by that process and none
   other. In view of the admitted fact that these officers have not
   taken any written examination, we see no reason as to how the          F
   challenge made by these judicial officers to the directive issued
   by the State Government for undertaking of written examination
   may be sustained. Thus, the relief prayed for cannot be granted in
   its entirety.
   180. In the case of the States of Punjab and Haryana, the              G
   appointees were directly appointed as FTC Judges by way of
   direct recruitment from the Bar and they prayed for regularisation
   of their services and absorption in the regular cadre as well as for
   continuation of the FTC Scheme till their absorption. For the
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272      SUPREME COURT REPORTS                            [2018] 10 S.C.R.


A     reasons already recorded by us in relation to other States mentioned
      above, we do not think that the relief of regularisation/absorption
      can be granted to these petitioners also in the manner in which
      they have prayed. They too have no right to the post. Admittedly,
      these candidates also did not pass any written competitive
      examination and were appointed solely on the basis of an interview
B
      and must now undergo the requisite examination.
               xx                xx                  xx
      207. Without any intent to interfere with the policy decision taken
      by the Governments, but unmistakably, to protect the guarantees
C     of Article 21 of the Constitution, to improve the justice delivery
      system and fortify the independence of judiciary, while ensuring
      attainment of constitutional goals as well as to do complete justice
      to the lis before us, in terms of Article 142 of the Constitution, we
      pass the following orders and directions:
D              xx                xx                  xx
      207.9 All the persons who have been appointed by way of direct
      recruitment from the Bar as Judges to preside over FTCs under
      the FTC Scheme shall be entitled to be appointed to the regular
      cadre of the Higher Judicial Services of the respective States
E
      only in the following manner:
         (a) The direct recruits to FTCs who opt for regularisation shall
         take a written examination to be conducted by the High Courts
         of the respective States for determining their suitability for
F        absorption in the regular cadre of Additional District Judges.
         (b) Thereafter, they shall be subjected to an interview by a
         Selection Committee consisting of the Chief Justice and four
         seniormost Judges of that High Court.
         (c) There shall be 150 marks for the written examination and
G        100 marks for the interview. The qualifying marks shall be
         40% aggregate for general candidates and 35% for SC/ST/
         OBC candidates. The examination and interview shall be held
         in accordance with the relevant Rules enacted by the States
         for direct appointment to Higher Judicial Services.
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  THE GAUHATI HIGH COURT THROUGH THE REGISTRAR                                 273
      GENERAL v. GOTO ETE & ORS. [A. K. SIKRI, J.]

          (d) Each of the appointees shall be entitled to one mark per         A
          year of service in the FTCs, which shall form part of the
          interview marks.
          (e) Needless to point out that this examination and interview
          should be conducted by the respective High Courts keeping in
          mind that all these applicants have put in a number of years as      B
          FTC Judges and have served the country by administering
          justice in accordance with law. The written examination and
          interview module, should, thus, be framed keeping in mind the
          peculiar facts and circumstances of these cases.
          (f) The candidates who qualify the written examination and           C
          obtain consolidated percentage as aforeindicated shall be
          appointed to the post of Additional District Judge in the regular
          cadre of the State.
          (g) If, for any reason, vacancies are not available in the regular
          cadre, we hereby direct the State Governments to create such         D
          additional vacancies as may be necessary keeping in view the
          number of candidates selected.
          (h) All sitting and/or former FTC Judges who were directly
          appointed from the Bar and are desirous of taking the
          examination and interview for regular appointment shall be given     E
          age relaxation. No application shall be rejected on the ground
          of age of the applicant being in excess of the prescribed age.
                      xx            xx            xx”
       11. Reverting to the developments in the present case, it may be
stated that though the representations of writ petitioners for absorption      F
on regular basis were earlier rejected twice, the High Court still took a
decision on July 31, 2012 to undertake selection process of FTC Judges
in terms of the aforesaid judgment of this Court in Brij Mohan Lal (2).
Accordingly, written examination was held in which the writ petitioners
appeared. These writ petitioners could secure only 22.33%, 33.66% and
                                                                               G
25% marks respectively as against the qualifying marks of 35% required
in the said examination. In this way, none of these writ petitioners could
qualify this examination. On their failure to quality, the High Court, vide
orders dated January 07, 2013, dispensed with their services. Within
three days thereafter, i.e. on January 10, 2013, the High Court issued an
advertisement inviting applications from eligible candidates for               H
274            SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     appointment to three vacant posts in the Grade-I cadre of the Arunachal
      Pradesh Judicial Service created on November 03, 2011.
             12. The writ petitioners filed Writ Petition (Civil) No. 776 of 2013
      in the High Court on February 05, 2013, challenging the order dated
      January 07, 2013 dispensing their services. Challenge was also laid to
B     the legality of the advertisement issued on January 10, 2013 and claimed
      absorption on the basis of proviso to Rule 7 of the 2006 Rules. In the
      meantime, written examination was held on March 23, 2013 pursuant to
      the aforesaid advertisement, in which seven candidates were found eligible
      having secured more than the cut-off marks of 60% for the General
      Category candidates and 50% for the ST Candidates. None of the writ
C     petitioners appeared in the said examination. Oral interview of the
      qualified candidates was held on April 09, 2013 by the four sitting High
      Court Judges (including the Chief Justice) and the names of respondent
      Nos. 6 to 8 were recommended consequent upon their qualification.
              13. The writ petition along with the stay application was listed
D     before the Court on April 11, 2013 when the Division Bench of the High
      Court was pleased to admit the same. However, since no interim relief
      was sought, no such order came to be passed. On that date, the High
      Court recommended for appointment the names of respondent Nos. 6 to
      8 having been selected both in written and viva voce examination. Exactly
E     one month thereafter, i.e. on May 11, 2013, the State Government created
      further three posts in Grade-I of the Arunachal Pradesh Judicial Service.
      Pursuant to the recommendation dated April 11, 2013 of the High Court,
      respondent Nos. 6 to 8 were appointed as Grade-I officers by the State
      Government under the 2006 Rules. The writ petitioners sought
      amendment of the writ petition by challenging appointment of respondent
F     Nos. 6 to 8. On August 13, 2013, the High Court allowed the writ
      petitioners to amend the writ petition by inserting challenge to the
      appointment order dated April 11, 2013 in favour of respondent Nos.
      6 to 8.
             14. After hearing the said writ petition, vide the impugned judgment
G     dated January 19, 2016, the High Court has allowed the relief claimed
      therein and set aside the order dated January 07, 2013 dispensing the
      ad hoc services of the writ petitioners as Additional District and Sessions
      Judge of FTCs in the State of Arunachal Pradesh. It has further directed
      the State Government to start consultation process for absorption of the
H     writ petitioners in Grade-I of the Arunachal Pradesh Judicial Service
  THE GAUHATI HIGH COURT THROUGH THE REGISTRAR                                 275
      GENERAL v. GOTO ETE & ORS. [A. K. SIKRI, J.]

with effect form January 07, 2013 and directed the High Court to consider      A
their absorption in the light of the observations made in the impugned
judgment.
        15. A perusal of the impugned judgment of the High Court would
reveal that it posed the following question for determination which arose
in the said writ petition:                                                     B
      “Whether the ad hoc services of the petitioners can be regularised
      in accordance with the proviso to Rule 7 of Arunachal Pradesh
      Judicial Service Rules, 2006 (“the Rules” for short)?”
       16. The High Court noted that initial appointment of the writ
petitioners as Additional Deputy Commissioners on contract basis with          C
the powers of ad hoc Additional Sessions Judge in the year 2001 at a
fixed pay of Rs.19,000/- was pursuant to an advertisement by the
Government. The writ petitioners had applied for the said post, had
appeared in the written test and were interviewed by the High Court.
The Full Court had approved the appointment of the writ petitioners and        D
pursuant to the said recommendation the Government issued orders of
appointment appointing them as the Presiding officers of the FTCs. Their
services were extended for a period of five years with effect from April
01, 2005. Before the expiry of the terms of the FTC, the High Court,
vide its letter dated February 19, 2010, recommended to the State
Government for extension of the terms of the FTC with effect from              E
April 01, 2010 for a further period of ten years and the same was approved
by the State Government vide its communication dated May 19, 2011 for
a period of five years, i.e. up to March 31, 2015. In the meantime, the
2006 Rules came into force, which, among others, contained the proviso
to Rule 7 for consideration of the writ petitioners for absorption to Grade-   F
I service. The State Government, vide letter dated February 25, 2008,
proposed to absorb the writ petitioners against the newly created posts
of Grade-I in the State Judicial Service by invoking the aforesaid proviso
to Rule 7 of the 2006 Rules by pointing out that they were appointed
after due selection in consultation with the High Court and had been
working under the control and supervision of the High Court. This              G
proposal was not accepted by the High Court. The Chief Secretary of
the State Government thereafter sent another letter dated August 25,
2008 requesting the High Court to absorb the writ petitioners in terms of
proviso to Rule 7 of the 2006 Rules based on their performance, integrity,
etc. However, this proposal was once again rejected by the High Court.         H
276            SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     Thereafter, the writ petitioners approached the State Government for
      conversion of the post of ad hoc FTCs into regular courts of Additional
      District and Sessions Judge. This request was acceded to by the State
      Government and it was decided to convert the FTCs into regular courts
      of Additional District and Sessions Judge along with their incumbents,
      i.e. the writ petitioners, and the same was forwarded to the High Court.
B
      Even Notification dated November 03, 2011 was issued in this behalf.
              17. After taking note of the aforesaid chronology of events, the
      Division Bench of the High Court has observed that in view of these
      developments, the writ petitioners should have been regularised.
      However, instead of considering the cases of the writ petitioners for
C     absorption, the High Court decided to hold the written and viva voce
      tests in terms of the decision in Brij Mohan Lal (2). The writ petitioners
      appeared, but failed. According to the Division Bench of the High Court,
      there was no reason for conducting such a test as the matter had to be
      examined in terms of proviso to Rule 7 of the 2006 Rules, which provision
D     was perfectly tailor-made for the writ petitioners. The Division Bench
      has further opined that the case of the writ petitioners could not be dealt
      with on the basis of the directions given by this Court in Brij Mohan Lal
      (2) having regard to the specific rule in the form of Rule 7, as can be
      seen from the following discussion:
E           “13. There is no dispute that dispensing with the services of the
            petitioners is the immediate fall out of the failure on their part to
            secure the minimum qualifying marks in the examination for their
            absorption into the service. Undoubtedly, judicial service of the
            State of Arunachal Pradesh is now under the control and supervision
            of the Gauhati High Court; the High Court has the undoubted
F           authority to decide as to whether the services of the petitioners
            should be continued or not irrespective of the terms of extension
            of the ad-hoc services of the petitioners by the State Government.
            However, in this case, what is of significance is the question of
            absorption of the services of the petitioners in the posts of Grade-
G           I in the Arunachal Pradesh Judicial Service Rules in terms of the
            proviso to Rule 7 of the Rules. The question is whether the decision
            of the Apex Court in Brij Mohan Lal case (supra) read as a whole
            can be construed to mean that any form of absorption irrespective
            of the nature of the appointment of ad hoc Judges of Fast Track
            Court is prohibited. The law is well-settled. A judgment of court
H
  THE GAUHATI HIGH COURT THROUGH THE REGISTRAR                                277
      GENERAL v. GOTO ETE & ORS. [A. K. SIKRI, J.]

      cannot be read like Euclid’s theorem and shall have to be read in       A
      the context in which it was decided. In the case at hand, it cannot
      be disputed that the petitioners were given the appointments on
      contract basis after the posts were advertised, and they underwent
      selection process conducted by the High Court. In Brij Mohan
      Lal case (supra), the Apex Court apparently distinguished
                                                                              B
      appointment by back door and appointment made after written
      competitive examination.”
        18. Thereafter, the High Court discussed the nature of appointments
to FTCs made by various States, including the States of Punjab and
Haryana, and found that in those cases persons were not appointed as
judicial officers through any written examination but were appointed          C
solely on the basis of an interview. In contrast, insofar as these persons
are concerned, the Division Bench of the High Court has held that in the
instant case, the writ petitioners had admittedly appeared and got selected
in the recruitment examination and the interview conducted by the High
Court on the basis of the advertisement made by the State Government.         D
Their appointments were also made after the approval of the High Court.
Therefore, the writ petitioners were needlessly required to undergo
written and oral test some 10 years or more after service as ad hoc
Judges, against whom there were nothing on record to show that they
were incompetent or corrupt in the discharge of their judicial works.
                                                                              E
      19. Giving the aforesaid reasons, the Division Bench of the High
Court has allowed the writ petition in the following terms:
      “16. For what has been stated in the foregoing, this writ petition is
      allowed in the following terms:
      (a) The State-respondents are directed to start forthwith the           F
      consultation process for absorption of the petitioners in Grade-I
      of the Arunachal Pradesh Judicial Service with effect from
      7-1-2013.
      (b) On receipt of the proposal for the absorption from the State
      Government, the High Court shall consider for the approval of the       G
      absorption of the petitioners in the light of the observations made
      by us in the foregoing.
      (c) If and when the absorption of the petitioners in Grade-I of the
      Arunachal Pradesh Judicial Service is done, they will not disturb
      the seniority of the private respondents.                               H
278            SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A           (d) The past services rendered by the petitioners during the period
            of their ad-hoc services shall be counted for all purposes except
            for seniority and monetary benefits.
            (e) The entire exercise shall be completed by both the State
            respondents and the High court within a period of three months
B           form the date of receipt of this judgment.
            (f) The parties are directed to bear their respective costs.”
             20. Mr. Vijay Hansaria, learned senior counsel appearing for the
      High Court, questioned the correctness of the aforesaid reasoning and
      submitted that some glaring aspects have been glossed over and due
C     weightage is not given to these aspects which are sufficient to turn the
      scales in favour of the High Court and against the writ petitioners. He
      highlighted the following aspects of the case:
            (a) All these writ petitioners were appointed on ad hoc and
            contractual basis for a specific term, that too in FTCs, which
D           scheme itself was temporary in nature. Such a kind of appointment,
            in normal course, would not confer any legal right upon the writ
            petitioners to seek regular appointment.
            (b) At the time of contractual engagement of the writ petitioners
            there was no division between the executive and the judicial branch
E           of the State. This separation came into effect in the year 2006
            with the promulgation of the Arunachal Pradesh Service Rules,
            2006. Rule 7 of these Rules provided method of recruitment,
            etc. Proviso thereto was only an enabling provision which gave
            discretion to the High Court to consider writ petitioners for
F           absorption in Grade-I of the service. It was argued that the words
            ‘may be considered’ clearly suggest that if at all these three writ
            petitioners only had a right to be considered but there was no right
            to get absorption automatically.
            (c) Their cases were duly considered by the Committee of three
            High Court Judges, which Committee, after consideration of the
G
            entire material, rejected the proposal twice for absorption of the
            writ petitioners in the regular cadre.
            (d) Even when advertisement for two posts of District and Sessions
            Judge (Grade-I) were created vide Notification dated December
            17, 2009 and two of the writ petitioners (respondent Nos. 2 and 3
H
    THE GAUHATI HIGH COURT THROUGH THE REGISTRAR                                 279
        GENERAL v. GOTO ETE & ORS. [A. K. SIKRI, J.]

         herein) appeared in the examination, they did not qualify in the        A
         selection process. Respondent No.1 did not even appear in the
         examination. This, according to the learned senior counsel, shows
         that they did not have sufficient competence and, therefore, failed
         to qualify the examination.
         (e) Brij Mohan Lal (2) lays down the law and specifies the              B
         procedure which has to be followed for regularisation of those
         appointed to FTCs. As per this, regularisation can take place
         only after the written examination is conducted by the High Court
         followed by the interview and the incumbents/candidates are
         successful in the said selection process. After this judgment, this
         process was undertaken in which all the three writ petitioners          C
         appeared, but again failed to get the qualifying marks of 35%.
       21. By highlighting the aforesaid facts, it was submitted that the
cases of the writ petitioners were considered under Rule 7 of the 2006
Rules as well as in terms of the judgment in Brij Mohan Lal (2) and on
both the occasions the writ petitioners were found unsuccessful for              D
regularisation. The learned senior counsel also submitted that the Division
Bench of the High Court in the impugned judgment has proceeded on
the basis as if the proviso to Rule 7 mandatorily required the High Court
to absorb these writ petitioners in the regular cadre whether they are fit
for the same or not. That was not the intention of the proviso to Rule 7         E
of the 2006 Rules.
       22. Mr. Hansaria even questioned the maintainability of the writ
petition insofar as respondent No. 1 is concerned with the submission
that he had earlier filed the petition in this Court which was withdrawn
by him after full scale hearing and no liberty was given to the said writ        F
petitioner to file another writ petition. The writ petition filed by this writ
petitioners in the High Court was, therefore, barred by principles of res
judicata, as held in Sarguja Transport Service v. State Transport
Appellate Tribunal, M.P., Gwalior and Others4. He also placed
reliance upon the judgment of this Court in Mahesh Chandra Verma
and Others v. State of Jharkhand and Others5, which case again                   G
pertained to regularisation of those appointed as Additional District Judges
in FTCs directly from the Bar. The Court in that case had draw distinction
between irregular and illegal appointments and further, going by the nature
4
    (1987) 1 SCC 5
5
    (2012) 11 SCC 656                                                            H
280            SUPREME COURT REPORTS                           [2018] 10 S.C.R.


A     of these appointments, laid down the manner of regularisation of such
      persons, if permissible. He also pointed out that Brij Mohal Lal (2)
      was specifically taken note of and it was clarified that the directions
      given in the said judgment were in exercise of powers of the Supreme
      Court under Article 142 of the Constitution of India, as can be see from
      the following discussion:
B
            “53. In Brij Mohan Lal (2), this Court has, after considering the
            entire matter in its proper perspective, held that the Judges of
            FTCs were holding ex-cadre post. We cannot reopen the settled
            position now. Certain judgments cited in this regard need not,
            therefore, be discussed. Besides, they have no application to this
C           case. It was argued that certain Assistant Public Prosecutors were
            appointed as FTC Judges. It was also urged that the age criteria
            was not abided by. We do not propose to go into those submissions
            because in the peculiar circumstances of that case, in Brij Mohan
            Lal (2), this Court has given certain directions in terms of Article
D           142 of the Constitution to improve justice delivery system, to attain
            the constitutional goals and to do complete justice. One of the
            directions pertains to the regularisation of the appellants in the
            manner laid down therein. It is impossible to hold that the appellants’
            case is not governed by the said judgment.
E           54. Indeed, the appellants have referred to their long-standing
            services as FTC Judges. They have left their practice at the Bar.
            Some of them have become age-barred. Certain judgments have
            been cited before us in support of the submission that these facts
            need to be considered and they must be absorbed in the regular
            services. Brij Mohan Lal (2) considers this grievance. Hence,
F           it is not necessary to refer to the cases cited on this point.
            55. We have repeatedly referred to Brij Mohan Lal (1) and Brij
            Mohan Lal (2). It is now necessary to see what they lay down.
            The Eleventh Finance Commission allocated funds for the purpose
            of setting up of 1734 courts in various States to deal with the long-
G           pending cases. The Finance Commission suggested that States
            may consider re-employment of retired Judges for a limited period
            since these courts were to be ad hoc courts in the sense that they
            would not be a permanent addition to the existing courts. The
            Fast Track Courts Scheme was challenged on various grounds.
H           The said challenge was dealt with by this Court in Brij Mohan
THE GAUHATI HIGH COURT THROUGH THE REGISTRAR                               281
    GENERAL v. GOTO ETE & ORS. [A. K. SIKRI, J.]

   Lal (1). This Court issued a number of directions in relation to        A
   establishment and functioning of FTCs. It was made clear that
   while making appointments, third preference should be given to
   direct recruits from the Bar. The following direction is material in
   this behalf: (Brij Mohan Lal (1) case, SCC p. 8, para 10)
      “10. … (4) The third preference shall be given to members of         B
      the Bar for direct appointment in these courts. They should be
      preferably in the age group of 35-45 years, so that they could
      aspire to continue against the regular posts if the Fast Track
      Courts cease to function. The question of their continuance in
      service shall be reviewed periodically by the High Court based
      on their performance. They may be absorbed in regular                C
      vacancies, if subsequent recruitment takes place and their
      performance in the Fast Track Courts is found satisfactory.
      For the initial selection, the High Court shall adopt such methods
      of selection as are normally followed for selection of members
      of the Bar as direct recruits to the Superior/Higher Judicial        D
      Services.”
   56. The Fast Track Courts Scheme was in operation till 31-3-2011.
   But thereafter the Union of India took a decision not to continue
   the financing of the Fast Track Courts Scheme beyond 31-3-2011.
   Some States decided to continue the Fast Track Courts Scheme            E
   and some States decided not to continue it. Several writ petitions
   were filed thereafter inter alia praying that necessary directions
   be given to the respondents to extend the Fast Track Courts
   Scheme and release necessary funds for that purpose. Some of
   the petitioners who were direct recruits claimed absorption in the
   regular cadre.                                                          F

   57. While dealing with the points raised in the petitions, this Court
   in Brij Mohan Lal (2) traced the history of the Fast Track Courts
   Scheme. This Court considered the notifications issued by various
   States appointing direct recruits, relevant rules of different States
   and methodology adopted for appointment to the FTCs and came            G
   to the conclusion that the said posts were temporary and the
   appointees cannot be said to have any legal right to the posts. It
   was observed that the appointments were governed under the
   separate set of rules than the rules governing the regular
   appointments to the State Higher Judicial Services. This Court          H
282            SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A           observed that the cumulative effect of the notifications appointing
            the petitioners therein to the said posts under the Fast Track Court
            Scheme and the relevant rules governing them clearly demonstrate
            that those were temporary and, in some cases, even time-bound
            appointments terminable without prior notice and, therefore, it is
            difficult to accept the contention that the appointees were entitled
B
            to be absorbed regularly in those posts. It was observed that where
            neither the post is sanctioned nor it is permanent and, in fact, the
            entire arrangement is ad hoc or is for an uncertain duration, it
            cannot create any rights and obligations in favour of the appointees,
            akin to those of permanent employees.”
C            23. Insofar as the case at hand is concerned, after noticing that
      the appointments were of irregular nature, the Court passed the following
      directions:
            “62. Indisputably, the appellants were not appointed on any
            permanent post. The notification of their appointment dated
D           12-8-2002 clearly states they were appointed against temporary
            and ex-cadre posts on ad hoc basis. They were not appointed
            under the Rules of 2001. Their appointment was made for a
            temporary purpose in a temporary scheme created for speedy
            disposal of cases. Their case is, therefore, clearly covered by
E           Brij Mohan Lal (2). The directions given therein, particularly
            those contained in para 207.9 which we have quoted above, will
            clearly apply to them. In Brij Mohan Lal (2), this Court even
            considered the contention that the direct recruits had taken all the
            tests and, therefore, they should not be made to undergo them
            again. After considering this argument, this Court directed that
F           they will have to take written examination and they must also be
            interviewed. It must be noted at this stage that on behalf of the
            High Court of Jharkhand a statement is made that subject to the
            creation of necessary posts/FTCs by the State of Jharkhand, the
            High Court will consider the appellants’ case afresh in terms of
G           the decision of this Court in Brij Mohan Lal (2). The High Court
            has also taken up the matter with the State Government. Relevant
            portion from the affidavit of Shri Ambuj Nath, Registrar
            (Administration), High Court of Jharkhand, needs to be quoted:
               “19. That as per the recommendation of the 13th Finance
H              Commission the Jharkhand High Court has requested the State
  THE GAUHATI HIGH COURT THROUGH THE REGISTRAR                                283
      GENERAL v. GOTO ETE & ORS. [A. K. SIKRI, J.]

          Government to constitute 31 alternative courts in the cadre of      A
          Superior Judicial Service coterminous with the Holiday Courts/
          Shift Court Scheme of the 13th Finance Commission as the
          terrain and deteriorating the law and order situation was not
          congruent for holding morning/evening/shift courts. However,
          after the direction of the Hon’ble Apex Court in Brij Mohan
                                                                              B
          Lal (2) case, the Jharkhand High Court has taken up the matter
          with the State Government for creation of 31 permanent Fast
          Track Courts instead of 31 alternative courts coterminous with
          the morning and evening shift courts and an expansion of 10%
          of cadre strength as per the direction of the Hon’ble Apex
          Court in Brij Mohan Lal (2) case in response to the direction       C
          dated 19-4-2012.”
      63. The State of Jharkhand will now have to take steps to comply
      with directions issued in Brij Mohan Lal (2), if it has not complied
      with them so far. The State of Jharkhand and the High Court will
      have to work in sync to ensure that the directions to appoint the       D
      appellants in the regular cadre in Higher Judicial Service are
      complied with strictly in the manner laid down in Brij Mohan Lal
      (2).”
      On that basis, it was argued that passing of the examination in
terms of Brij Mohan Lal (2) was incumbent.                                    E
       24. Mr. Vikas Singh, learned senior counsel appearing for these
writ petitioners, on the other hand, submitted that the High Court is right
in observing that proviso to Rule 7 of the 2006 Rules was tailor-made for
these writ petitioners and also keeping in view the spirit of the decision
in Brij Mohan Lal (2). He laid great emphasis on the fact that the            F
State Government had considered the case of the writ petitioners and
recommended the High Court two times to absorb the writ petitioners,
but the High Court adopted adamant attitude in ignoring those
recommendations. He also submitted that the case of the writ petitioners
was different from the cases which were dealt with by this Court in Brij
Mohan Lal (2), whereas in Brij Mohan Lal (2) this Court was                   G
confronted with the situation where the appointments to FTCs were
made without following proper procedure and those cases were in the
nature of back-door entries, it was not so insofar as the writ petitioners
are concerned. He, thus, argued that the High Court had rightly
distinguished Brij Mohan Lal (2) by specifically noticing the aforesaid       H
284             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     difference inasmuch as the writ petitioners are appointed after proper
      written test as well as interview, whereas no written test was taken in
      respect of those persons who were appointed by the State of Haryana,
      etc. and their appointments were made only on the basis of interview.
             25. After taking note of the facts of this case, we may observe at
B     the outset that if the matter of regularisation of the writ petitioners was
      to be considered in terms of Brij Mohan Lal (2), the writ petitioners
      have remained unsuccessful. This is because of the reason that in terms
      of Brij Mohan Lal (2), written examination was undertaken by the
      High Court in which all the three writ petitioners appeared, but they
      failed to achieve the qualifying marks. Therefore, if that standard is to
C     be applied, the writ petitioners have not been able to qualify the
      examination and cannot claim absorption in the regular service. However,
      whether Brij Mohan Lal (2) would apply or not is a moot question. The
      High Court has distinguished the judgment of Brij Mohal Lal (2) and
      has held that that is not applicable. However, since the High Court Bench
D     has examined the matter in terms of the proviso to Rule 7 of the 2006
      Rules, we may first consider as to whether its approach relating to this
      facet is correct in law.
             26. Rule 7 has already been reproduced above, which lays down
      the procedure and method of recruitment to the post of Additional Sessions
E     Judges. The case of the writ petitioners is not covered by the main
      provision. As noticed above, when two posts of Grade-I District and
      Sessions Judges, after their creation vide Notification dated December
      17, 2007 were advertised, two of the writ petitioners appeared but failed
      to qualify in the said selection process while the third writ petitioner did
      not appear at all. Adverting to the proviso of Rule 7, no doubt, it was
F     tailor-made for the writ petitioners. However, this proviso only suggests
      that cases of three ad hoc Additional Sessions Judges, who were none
      else but the three writ petitioners, ‘may be considered’ for absorption
      in Grade-I of the service. It is not necessary to go into the question as to
      whether the word ‘may’ would mean that it was entirely within the
G     discretion of the High Court to even consider or not to consider the
      cases of the writ petitioners for absorption or whether this word has to
      be read as ‘shall’ thereby holding that it was mandatory on the part of
      the High Court to at least consider the cases of the writ petitioners for
      absorption. This is because of the reason that as matter of fact the
      cases of the writ petitioners were considered by the High Court and, in
H
    THE GAUHATI HIGH COURT THROUGH THE REGISTRAR                                  285
        GENERAL v. GOTO ETE & ORS. [A. K. SIKRI, J.]

fact, that appears to be the intention behind the proviso. However, the           A
provision provided only to ‘consider’ the cases of the writ petitioner for
absorption. The proviso never gave any mandate that the writ petitioners
had to be necessarily absorbed. Thus, only right of consideration was
there. There was no automatic absorption. Had that been the intention,
the proviso would have been worded differently.
                                                                                  B
       27. Insofar as consideration is concerned, the position prevalent
on record of this case is somewhat curious. A Committee of three High
Court Judges had considered twice the cases of the writ petitioners. As
per the High Court this consideration was done by looking into the entire
material, but the proposal for absorption was rejected on both occasions.
On the other hand, insofar as the Government is concerned, it had                 C
recommended the case of the writ petitioners for absorption. It is this
factor which has weighed with the Division Bench of the High Court.
However, we are of the opinion that this approach is unsustainable in
law, having regard to the mandate of Articles 233 to 235 of the Constitution
of India. These provisions are aimed at securing the independence of              D
the Judiciary from the Executive. These Articles provide a complete
code for regulating recruitment and appointment to the District Judiciary
and the Subordinate Judiciary. It has been held in Rajendra Singh
Verma (Dead) through Lrs. and Others v. Lieutenant Governor (NCT
of Delhi) and Othes6 that the scheme envisaged in the aforesaid
provisions of the Constitution does not permit the State to encroach upon         E
the area covered by these Articles. We may also reproduce, with benefit,
following discussion from Ajit Kumar v. State of Jharkhand and
Others7:
         “17. It cannot be disputed that the power under the aforesaid
         articles is to be exercised by the Governor in consultation with the     F
         High Court. Under the scheme of the Indian Constitution the High
         Court is vested with the power to take decision for appointment
         of the subordinate judiciary under Articles 234 to 236 of the
         Constitution. The High Court is also vested with the power to see
         that the high traditions and standards of the judiciary are maintained   G
         by the selection of proper persons to run the District Judiciary. If
         a person is found not worthy to be a member of the judicial service
         or it is found that he has committed a misconduct he could be
6
    (2011) 10 SCC 1
7
    (2011) 11 SCC 458
                                                                                  H
286               SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A              removed from the service by following the procedure laid down.
               Power could also be exercised for such dismissal or removal by
               following the preconditions as laid down under Article 311(2)(b)
               of the Constitution of India. Even for imposing a punishment of
               dismissal or removal or reduction in rank, the High Court can hold
               disciplinary proceedings and recommend such punishments. The
B
               Governor alone is competent to impose such punishment upon
               persons coming under Articles 233-235 read with Article 311(2)
               of the Constitution of India. Similarly, such a power could be
               exercised by the High Court to dispense with an enquiry for a
               reason to be recorded in writing and such dispensation of an
C              enquiry for valid reasons when recommended to the Governor, it
               is within the competence of the Governor to issue such orders in
               terms of the recommendation of the High Court in exercise of
               power under Article 311(2)(b) of the Constitution of India.”
              28. It has also been authoritatively held in Chandramouleshwar
D     Prasad v. Patna High Court and Others, which is now a settled position
      of law, that the Governor cannot appoint a nominee of his without
      obtaining the views of the High Court, even where he is not prepared to
      accept the nominee of the High Court8. The reason is, whether in the
      case of promotion from the Subordinate Judiciary or of direct recruitment
      from the Bar, the performance of the candidate would be best known to
E     the High Court. This is so succinctly brought out in High Court of
      Punjab and Haryana and Others v. State of Haryana and Others9
      in the following words:
               “49. The confirmation of persons appointed to be or promoted to
               be District Judges is clearly within the control of the High Court
F              for these reasons. When persons are appointed to be District Judges
               or persons are promoted to be District Judges the act of
               appointment as well as the act of promotion is complete and nothing
               more remains to be done. Confirmation of an officer on successful
               completion of his period of probation is neither a fresh appointment
G              nor completion of appointment. Such a meaning of confirmation
               would make appointment a continuing process till confirmation.
               Confirmation of District Judges is vested in the control of the
               High Court for the reason that if after the appointment of District
      8
          (1969) 3 SCC 56
      9
          (1975) 1 SCC 843
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  THE GAUHATI HIGH COURT THROUGH THE REGISTRAR                                 287
      GENERAL v. GOTO ETE & ORS. [A. K. SIKRI, J.]

      Judges the Governor will retain control over District Judges until       A
      confirmation there will be dual control of District Judges. The
      High Court in that case would have control over confirmed District
      Judges and the Governor would have control over unconfirmed
      District Judges. That is not Article 235.
      50. In the recent decision in Samsher Singh v. State of Punjab           B
      this Court held that the High Court under Article 235 is vested
      with the control over subordinate Judiciary. This Court said that
      before a probationer is confirmed the authority concerned is under
      an obligation to consider whether the work of the probationer is
      satisfactory or he is suitable for the post. In the absence of any
      rules governing the probationer in this respect the authority may        C
      come to the conclusion that on account of inadequacy for the job
      or for any temperamental or other object not involving moral
      turpitude the probationer is unsuitable for the job and hence must
      be discharged. No punishment is involved in this. The suitability
      of a person to a post is of paramount importance in considering          D
      the question of confirmation.”
      Thus, the control vests with the High Court.
       29. We are also of the opinion that the Division Bench in the
impugned judgment has given undue credence to the initial recruitment
process wherein the writ petitioners were selected inasmuch as it has          E
held that at the time of their recruitment written examination and interview
were held pursuant to which the writ petitioners were selected. What is
to be borne in mind is that the said process was for appointment for a
limited purpose and that too on contract basis and if that was so, proviso
to Rule 7 of the 2006 Rules would have specifically made provision to          F
this effect, which was not done. Such a kind of appointment, normally,
would not confer any right of regularisation.
       30. The impugned judgment also does not look the matter in proper
perspective by observing that since the writ petitioners had worked for
ten years approximately, as ad hoc Judges, and since there was nothing         G
on record to show that they were incompetent or corrupt in discharge of
their judicial work, they should have been absorbed in the regular cadre.
It is stated at the cost of repetition that their service records were
examined by the Committee consisting of three High Court Judges and
on the said examination the Committee was of the opinion that the writ
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288                SUPREME COURT REPORTS                        [2018] 10 S.C.R.


A     petitioners were not entitled for appointment to the regular cadre of
      Higher Judicial Service. No challenge was laid by the writ petitioners to
      the manner in which their cases were considered and rejected by the
      High Court or that such a consideration suffered from any kind of blemish.
      Even otherwise, such a decision of the Committee stands vindicated
      inasmuch as:
B
            (i) the two writ petitioners who appeared in the examination
      pursuant to an advertisement for the post of Grade-I District and Sessions
      Judge failed to qualify in the selection process and the third writ petitioner
      did not appear at all; and
C           (ii) the petitioners even failed to qualify the test which was
      conducted pursuant to Brij Mohan Lal (2) in which the writ petitioners
      had appeared. This fact is noted just to point out the incompetence of
      the writ petitioners. Otherwise, our decision is based on the analysis of
      proviso to Rule 7.
D            31. Having regard to the above, it is not even necessary to discuss
      as to whether ratio of Brij Mohan Lal (2) applies or not. However,
      suffice is to state that ratio of Brij Mohan Lal (2) is discussed by this
      Court in detail in the case of Mahesh Chandra Verma and there also
      the Court was of the opinion that appointment on regular cadre should
      be made only on the basis of written examination etc. as laid down in
E     Brij Mohan Lal (2). We again clarify that, in any case, we have come
      to the conclusion that even in terms of proviso to Rule 7 of 2006 Rules
      the cases of the writ petitioners were considered, but they were not
      found fit for absorption in the regular cadre.
             32. As a result, this appeal succeeds and is allowed thereby setting
F     aside the impugned judgment.
             No costs.


      Ankit Gyan                                                      Appeal allowed.

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